| REPORTABLE<br>NSC 198<br>IN THE SUPREME COURT OF INDIA<br>CRIMINAL APPELLATE JURISDICTION<br>CRIMINAL APPEAL NO(s). 250 OF 20 16 | | | | | | | | | | | | | | REPORTABLE | |
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| | CRIMINAL APPELLATE JURISDICTION | | | | | | | | | | | | | |
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| | | | | | CRIMINAL APPEAL NO(s). 250 OF 20 | | | | | | | | | |
THAKORE UMEDSING NATHUSING ….Appellant(s)
VERSUS
STATE OF GUJARAT ….Respondent(s)
WITH
CRIMINAL APPEAL NOS. 218219 OF 2016
CRIMINAL APPEAL NO.1102 OF 2024
JUDGMENT
Mehta, J.
| 1. | | These appeals take exception to the common judgment dated |
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| 11<br>ture Not | th<br>Ver | December, 2015 passed by the High Court of Gujarat at<br>ified |
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| lly signed by<br>ak Singh<br>2024.03.12 | | |
| :48 IST<br>oAn: hmedabad in Criminal Appeal Nos. 949 of 1994 and 1012 of 1993. | | |
| 2. | | The appellants being the original accused Nos. 1, 2, 3 and 5 |
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1
namely Thakore Laxmansing Halsing (hereinafter being referred to
as A1), Thakore Pravinsing Rajsing(hereinafter being referred to as
A2), Thakore Umedsing Nathusing (hereinafter being referred to as
A3), Thakore Khemsing Halsing(hereinafter being referred to as A5)
alongwith original accused No.4, namely, Thakore Prabhatsing
Kapursing(hereinafter being referred to as A4), were tried in
Sessions Case Nos. 107 and 143 of 1990 respectively by the learned
Additional Sessions Judge, District Banaskantha at Palanpur
(hereinafter being referred to as ‘trial Court’). The accused
appellants were convicted by the trial Court for the offence
punishable under Section 392 of the Indian Penal Code, 1860 (for
short ‘IPC’) and were sentenced to undergo 10 years’ rigorous
imprisonment with fine of Rs. 5,000/ and in default, to undergo
further three months simple imprisonment. The learned trial Court
acquitted accused appellants of the charges under Sections 302
read with Section 34 and Sections 396 and 397 IPC vide the
| judgment and final order dated 21 | st | August, 1993. The original |
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accused No.4 was acquitted of all the charges.
| 3. | | Being aggrieved, the accused appellants preferred Criminal |
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| Appeal No. 1012 of 1993 against the judgment and order dated 21 | st |
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August, 1993 and craving acquittal whereas, the State preferred
2
Criminal Appeal No. 949 of 1994 seeking to assail the acquittal of
the accused appellants for the charged offences, i.e. Sections 302
read with Section 34 and Sections 396 and 397 of IPC.
| Brief Case of Prosecution: | |
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| 4. | | One Vithalbhai Kachrabhai Barot PW1 lodged a complaint |
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| dated 1 | st | March, 1990 [Exhibit21] at Gadh Police Station, Taluka |
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| Palanpur, Gujarat alleging | inter alia | that his son Bharatbhai |
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(deceased) who used to drive a Jeep bearing registration No.GJ08
114 had been murdered and his dead body was found lying in the
field of one Nizamkhan at village Dangiya on Dantiwada Road.
Based on the said complaint, Criminal Case (FIR) No. 2914 of 1990
came to be registered at Gadh Police Station, Taluka Palanpur,
Gujarat and the investigation was commenced.
| 5. | | In the early hours of 2 | nd | March, 1990, PSI J.N. Chaudhary |
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(PW22) of Sardarnagar Police Station saw a jeep being rapidly
driven near Charannagar, Ahmedabad. The PSI tried to stop the
jeep which was being driven away at a high speed and the same
was stopped at some distance. Four persons alighted from the jeep
and tried to run away. One of these persons was chased down and
was apprehended and he divulged his name to be Laxmansing(A1).
| 6. | | It is alleged that A1, upon interrogation by the police disclosed |
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3
the names of four coaccused (A2, A3, A4 and A5) and stated that
they were the ones who were travelling with him in the jeep.
| 7. | | During interrogation, A1 also confessed to the murder of the |
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owner of the jeep and also that the vehicle was looted in the course
of the said transaction. He also stated that the persons who had
escaped from the spot were also privy to the murder. Since the jeep
bore blood stains, it was seized and A1 was taken into custody.
| 8. | | The usual investigation was conducted; | panchnama | was |
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prepared; the remaining four accused were apprehended. At the
instance of A2, a blood stained knife was recovered which was
alleged to be the weapon of offence. This recovery was alleged to be
| from a | nala | . A3 and A4 were arrested. Blood stained clothes of A3 |
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| were recovered. A4 was arrested on 4 | th | April, 1990 and a knife was |
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produced on his information by one Shobhnaben wife of Kanji
Chhara. The Investigating Officer concluded that the accused
persons had taken the jeep taxi of Bharatbhai (deceased) on hire
and thereafter they murdered the victim and looted the jeep.
| 9. | | Two separate chargesheets came to be filed against the |
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| accused in the Court of Judicial Magistrate I | st | Class (JMFC) |
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concerned for the offences punishable under Sections 302 read with
Section 34 and Sections 396 and 397 of the IPC. The offences being
4
exclusively triable by the Court of Sessions, both sets of charge
sheeted accused were committed to the Sessions Court,
Banaskantha, at Palanpur from where the cases were made over to
the Court of Additional Sessions Judge, Banaskantha at Palanpur
for trial. Charges were framed against A1, A2, A3 and A4 in
Sessions Case No. 107 of 1990 for the offences punishable under
Section 302 read with Section 34 of the IPC and Sections 396 and
397 of the IPC. Identical charges came to be framed against A5 in
Sessions Case No. 143 of 1990. The accused pleaded not guilty and
claimed to be tried. Though charges were framed separately, the
trial of both sets of accused was conducted jointly.
| 10. | | Twenty five (25) witnesses were examined and twenty three(23) |
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documents were exhibited by the prosecution in order to prove its
case. Upon being questioned under Section 313 of Code of Criminal
Procedure, 1973 (hereinafter being referred to as ‘CrPC’) and when
confronted with the circumstances portrayed by the prosecution
against the accused, they denied the same and claimed to be
innocent.
| 11. | | After hearing the arguments advanced by the learned Public |
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Prosecutor and the defence counsel and upon appreciating the
evidence available on record, the learned trial Court, proceeded to
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acquit accused No. 4 in entirety. While recording acquittal of A1,
A2, A3 and A5 from the charges for the offences punishable under
Section 302 read with Section 34 and Sections 396 and 397 of the
| IPC, | | they | | were held guilty and convicted for the offence punishable |
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under Section 392 of the IPC and were sentenced to undergo 10
years’ rigorous imprisonment and a fine of Rs. 5,000/, in default to
further undergo 3 months simple imprisonment. Being aggrieved
by their conviction, the accused A1, A2, A3 and A5 preferred
Criminal Appeal No. 1012 of 1993 whereas the State preferred
Criminal Appeal No. 949 of 1994 for assailing acquittal of A1, A2,
A3 and A5 before the Gujarat High Court.
| 12. | | The appeal preferred by the State being Criminal Appeal No. |
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949 of 1994 was allowed by the Division Bench of the High Court of
| Gujarat vide judgment dated 11 | th | December, 2015 whereas the |
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appeal preferred by the accused appellants was dismissed. The
High Court reversed the acquittal of the accused and convicted
them for the offences punishable under Sections 302 and 396 IPC
and sentenced them to undergo life imprisonment and the fine and
default sentence imposed by learned trial Court was maintained.
| 13. | | The aforesaid judgment dated 11 | th | December, 2015 is assailed |
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in these appeals preferred on behalf of the accused appellants.
6
Submissions on behalf of accused appellants:
| 14. | | Learned counsel for the accused appellants contended that the |
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prosecution did not prove any document whatsoever to establish
that the jeep bearing registration No.GJ08114 was owned by or
was in possession of the deceased. The incriminating articles
allegedly recovered at the instance of the accused were never got
examined through the Forensic Sciences Laboratories (FSL). Only
the blood samples of two accused were sent to the FSL for
serological examination.
| 15. | | The prosecution miserably failed to prove the fact that A1 was |
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found present in the Jeep bearing registration No.GJ08114, when
the same was stopped by the PSI J.N. Chaudhary (PW22) of the
Kubernagar Police Station. In this regard, attention of the Court
was drawn to the communication i.e. Exhibit96 forwarded by PSI
J.N. Chaudhary (PW22) to the officer incharge of the Sardarnagar
Police Station wherein the registration number of the jeep is not
mentioned. Learned counsel urged that this omission is fatal to the
prosecution case.
| 16. | | It was thus urged that there is no reliable and tangible |
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evidence establishing guilt of the accused beyond reasonable doubt
so as to justify conviction of the accusedappellants as directed by
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the Division Bench of the Gujarat High Court while reversing the
findings of acquittal recorded by the trial Court.
| 17. | | It was further contended that A2, A3 and A5 have been |
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convicted solely on the basis of the confessional statement of A1
recorded by the Police Inspector PW22. Learned counsel submitted
that the said disclosure being in the form of a confession recorded
by the Police Officer, is totally inadmissible in evidence as being hit
by Sections 25 and 26 of the Indian Evidence Act, 1872(hereinafter
being referred to as ‘Evidence Act’).
| 18. | | It was further submitted that the High Court, while reversing |
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the acquittal of the accused as recorded by the trial Court, has not
recorded any such finding that the view taken by the trial Court
was perverse or two views i.e. one favouring the accused and the
other favouring the prosecution were not possible from the evidence
as available on record. It was contended that the findings recorded
by the High Court in the impugned judgments are not based on any
tangible evidence and are drawn sheerly on conjectures and
surmises. They, therefore, submitted that the accused are entitled
to an acquittal and the impugned judgment deserves to be set
aside.
Submissions on behalf of RespondentState:
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| 19. | | Per contra | , Ms. Archana Pathak Dave, learned senior counsel |
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appearing for the respondentState vehemently opposed the
submissions advanced by the learned counsel representing the
accusedappellants. She submitted that the High Court, after
thorough and apropos appreciation of the substantial and
convincing circumstantial evidence led by the prosecution has
recorded unimpeachable findings holding the accused guilty of the
offences. She thus implored the Court to dismiss the appeals and
affirm the judgment of the High Court.
:
Discussion
| 20. | | We have given our thoughtful consideration to the |
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submissions advanced at bar and thoroughly perused the
impugned judgment minutely and the evidence available on record.
21. Two fundamental issues are presented for adjudication in
these appeals:
(i) The scope of interference by High Court in an
appeal challenging acquittal of the accused by the trial
Court;
(ii) The standard of proof required to bring home
charges in a case based purely on circumstantial
evidence.
| 22. | | It is not in dispute that the prosecution did not lead any direct |
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9
evidence so as to bring home the charges against the accused and
the entire case of prosecution is based on circumstantial evidence.
23. The principles required to bring home the charges in a case
based purely on circumstantial evidence have been crystalized by
this Court in the case of Sharad Birdhichand Sarda v. State of
. The following five golden rules
Maharashtra, (1984) 4 SCC 116
were laid down in the above judgment:
“(1) the circumstances from which the conclusion of guilt is
to be drawn must or should be and not merely “may be”,
fully established.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.”
24. The principles that govern the scope of interference by the
High Court in exercise of appellate jurisdiction while dealing with
an appeal against acquittal under Section 378(1)(b) CrPC were
reiterated by this Court recently in the case of H.D. Sundara and
10
as follows:
Others v. State of Karnataka, (2023) 9 SCC 581
“(a) The acquittal of the accused further strengthens the
presumption of innocence;
(b) The appellate Court, while hearing an appeal against
acquittal, is entitled to reappreciate the oral and
documentary evidence;
(c) The appellate Court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required to
consider whether the view taken by the Trial Court is a
possible view which could have been taken on the basis of
the evidence on record;
(d) If the view taken is a possible view, the appellate Court
cannot overturn the order of acquittal on the ground that
another view was also possible; and
(e) The appellate Court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused was
proved beyond a reasonable doubt and no other
conclusion was possible.”
| 25. | | Viewed in the light of these well settled legal principles, we |
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now proceed to evaluate the impugned judgment whereby the
conviction of the accused has been recorded reversing the acquittal
by trial Court. Relevant findings from the impugned judgment dated
th
11 December 2015 are reproduced hereinbelow for the sake of
ready reference:
“[6.1]. At the outset it is required to be noted and it is not
in dispute that the dead body of the deceased Bharatbhai
was found on 01.03.1990 in the agricultural field of one
Nizamkhan at village Dangiya on Dantiwada road within
the jurisdiction of the Gadh Police Station, Taluka
Palanpur. It is not in dispute that that original accused No.
1 Laxmansingh was apprehended by the PSI Shri.
11
Chaudhary of Sardarnagar Police Station on 02.03.1990
in the early morning. That on 02.03.1990, in early morning
at Ahmedabad near Chharanagar, PSI of Sardarnagar
Police station saw one jeep (muddamal jeep) coming in
speed and he tried to stop the same. That four persons
other than the original accused No. 1 were successful in
running away from jeep, however the original accused No.
1 was arrested and interrogated. That the original
accused No. 1 tried to explain his presence in the jeep in
his further statement recorded under section 313 of the
CrPC. According to original accused No. 1, as he wanted to
go to Palanpur from Gitamandir Bus stand and one jeep
was taking passengers to Palanpur, he was offered to sit
in the same on payment of charges and therefore, he along
with other passengers sat in the jeep and on the road near
Sardarnagar Police tried to stop the jeep which was
stopped at some distance and therefore, the passengers
and the driver ran away and when he alighted from the
jeep, the police arrested him. However, by giving cogent
reasons the learned trial Court has not accepted the
defence of the original accused No. 1. It is required to be
noted that to go to Palanpur from Gitamandir Bus stand,
Chharanagar from where the original accused No. 1 was
apprehended from jeep, was not the route at all. To got to
Palanpur from Gitamandir Bus stand, one was not
required to go to Chharanagar/Sardarnagar at all. Under
the circumstances, as such the original accused No. 1 gave
the false explanation/defence in his further statement
recorded under section 313 of the CrPC. At this stage it is
required to be noted that the design of the tyres of the jeep
tallies with the tyre marks found at the place of incident
from where the dead body of the deceased Bharatbhai
was found. Even the design of the slippers of the original
accused No. 1 tallies with the design of slipper found at
the place of incident.
[6.2] In the present case there is recovery of the knife used
in committing the offence, at the instance of original
accused No. 2 Pravinsingh which was recovered from the
place which could have been known to the said accused
alone i.e. from Nala near PalanpurSiddhpur Highway
road. The recovery of the knife at the instance of the
original accused No. 2 has been established and proved
by examining the panch witnesses.
[6.3] In the present case even there is a recovery of the
knife at the instance of the original accused Nos. 3 and 5
and the knife used in committing the offence was
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recovered from the place which was known to the said
accused alone. Even the trousers/pant of the original
accused Nos. 3 and 5 were recovered at their instance
from the house of one Kanjibhai friend of the said
accused. The said pants were having blood stains. The
original accused Nos. 3 and 5 have failed to explain the
blood stains on their trousers. The recovery of the
trouser/pants and the knife at the instance of original
accused Nos. 3 and 5 have been established and proved
by examining Kanjibhai at Exh.77 and his wife
Shobhnaben.
[6.4]. It is further submitted that therefore when there are
recoveries of the weapons used in committing the offence
and even recovery of trousers/pants of original accused
Nos. 3 and 5 having blood stains, at the instance of the
original accused Nos. 2, 3 and 5 and when original
accused No. 1 was as such found/apprehended/arrested
with the muddamal jeep and his defence/explanation is
found to be false and when the prosecution has been
successful in establishing and/or proving the complete
chain of events with respect to the involvement of the jeep
which was driven by the original accused No. 1, it cannot
be said that the trial Court has committed any error in
convicting the accused Nos. 1, 2, 3 and 5 for the offence
punishable under section 392 of the IPC. It is required to
be noted that even the blood stains were found on the
hood of the jeep and even on the knife.
[6.5]. Now, that takes us to the appeal preferred by the
State against the impugned judgment and order of
acquittal passed by the learned trial Court acquitting the
original accused for the offences punishable under
sections 302 and 396 of the IPC.
So far as the impugned judgment and order of
acquittal passed by the learned trial Court acquitting the
accused for the offence punishable under section 396 of
the IPC is concerned, it appears that by the impugned
judgment and order, the learned trial Court has acquitted
the accused for the offence punishable under section 306
of the IPC on the ground that as original accused No. 4 has
been acquitted and the number of remaining convicted
accused would be only four, the learned trial Court has
acquitted the remaining accused for the offence punishable
under section 396 of the IPC. However, it is required to be
noted that from the very beginning there were allegations
of involvement of five persons in committing the offence. It
is true that out of five accused, original accused No. 4 has
13
been acquitted for want of sufficient evidence. However,
on that ground alone the remaining accused could not
have been acquitted for the offence punishable under
section 396 of the IPC. As observed by the Hon'ble
Supreme Court in the case of Manoj Giri (Supra), in a given
case it may happen that there can be five or more persons
and the factum of five or more persons either is not
disputed or is clearly established, but the Court may not
be able to record a finding as to identity of all the persons
said to have committed dacoity and may not be able to
convict them and order their acquittal, observing that
thereafter identity is not established, or that otherwise
there is insufficient evidence to convict them, in such case
there can be a conviction of less than five persons or even
one for dacoity. Similar is the view taken by the Hon'ble
Supreme Court in the case of Saktu (Supra). Under the
circumstances and in the facts and circumstances of the
case, learned trial Court has materially erred in acquitting
the remaining original accused Nos. 1, 2, 3 and 5 for the
offences punishable under section 396 of the IPC.
[6.6] Similarly, the learned trial Court has committed grave
error in acquitting the original accused for the offence
punishable under section 302 of the IPC. From the findings
recorded by the learned trial Court as such the learned
trial Court has specifically observed and given a finding
that original accused Nos. 1, 2, 3 and 5 have committed
the murder/loot and dacoity and there is ample material /
evidence against them connecting them with respect to the
murder of the deceased Bharatbhai. Therefore, as such
the learned trial Court has already convicted the accused
for the offence punishable under section 392 of the IPC. As
observed hereinabove, original accused Nos. 1, 2, 3 and 5
are also held to be guilty for the offence punishable under
section 396 of the IPC. Once the accused are convicted for
the offence punishable under section 396 of the IPC i.e.
dacoity with murder and the death of the deceased
Bharatbhai was homicidal death, the learned trial Court
ought to have convicted the accused for the offence
punishable under section 302 of the IPC also. As observed
hereinabove, the prosecution has been successful in
proving and establishing the complete chain of events by
leading cogent evidence and therefore, accused persons
were liable to be convicted for the offence punishable
under section 302 of the IPC.
[6.7]. Now, so far as the reliance placed upon the decisions
of the Hon'ble Supreme Court in the cases of Rakesh
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(Supra); Vijay Kumar (Supra) and Kanhaiyalal (Supra)
relied upon by the learned advocate appearing on behalf
of the original accused is concerned, it is required to be
noted that on facts and the findings recorded by this
Court, none of the aforesaid decisions shall be applicable
and/or of any assistance to the accused.
[6.8]. Now, so far as the reliance placed upon the decision
of the Hon'ble Supreme Court in the case of Rakesh
(Supra) by the learned advocate appearing on behalf of the
accused is concerned, it is required to be noted that in the
present case there is recovery of knife/s at the instance of
original accused No. 2 and original accused Nos. 3 and 5
and that there is discovery of clothes of original accused
Nos. 3 and 4 with blood stains which are not explained by
the original accused Nos. 2, 3 and 5. Similarly, in the case
before the Hon'ble Supreme Court in the case of
Kanhaiyalal (Supra), except last seen together, there was
no other evidence connecting the accused. Under the
circumstances, none of the aforesaid decisions shall be
applicable to the facts of the case on hand and/or shall be
of any assistance to the accused.
[7.0]. In view of the above and for the reasons stated
above, Criminal Appeal No. 1012/1993 preferred by the
original accused against their conviction for the offence
punishable under section 392 of the IPC is hereby
dismissed.”
| 26. | | On going through the record, we find that the prosecution |
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relied upon the circumstantial evidence comprising of disclosures,
recoveries and discoveries for bringing home the guilt of the
accused.
| 27. | | The most important recovery is alleged to be of the jeep |
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bearing registration No.GJ08114.
| 28. | | We may note that the said recovery is attributed to A1, who |
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| was allegedly apprehended by PSI J.N. Chaudhary (PW22) on 02 | nd |
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15
March, 1990. He forwarded a report/communication (Exhibit96)
| dated 2 | nd | March, 1990 to the officer incharge of the Sardarnagar |
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Police Station wherein, the confession made by the A1 implicating
himself and the other accused is recorded.
| 29. | | It is trite that confession of an accused in custody recorded by |
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a police officer is inadmissible in evidence as the same would be hit
by Section 25 of the Evidence Act. Thus, that part of the statement
of A1 as recorded in the report/communication (Exhibit96),
wherein he allegedly confessed to the crime of murder of the jeep
driver and looting the jeep and named the other accused persons as
particeps criminis is totally inadmissible and cannot be read in
evidence except to the extent provided under Section 27 of the
Evidence Act.
| 30. | | After A1 had been apprehended, PSI J.N. Chaudhary (PW22) |
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| prepared two | panchnamas | i.e. Exhibit88 and Exhibit89. The |
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| panchnama | (Exhibit89) was prepared at 08:30 hours on 2 | nd | March, |
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1990 wherein, there is no mention that A1 had disclosed the names
of the other accused. This omission is very striking and goes to the
root of the matter. It creates a grave doubt on the truthfulness of
the evidence of PSI J.N. Choudhary (PW22). As a consequence, the
so called disclosure statement made by A1(Exhibit96) on which the
16
prosecution banked upon and the High Court relied upon by
treating it to be an incriminating circumstance against the accused
persons is totally inadmissible and unworthy of reliance.
| 31. | | One of the | panch | witnesses Pratap Tolaram Makhija was |
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examined as PW21 and in his deposition, he did not utter a single
word regarding the accused having made any
confessional/disclosure statement to PSI J.N. Choudhary(PW22)
when the memos (Exhibits88 and 89) were prepared.
| 32. | | When PSI J.N. Chaudhary (PW22) was examined, the |
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prosecution did not even make an attempt to prove the confessional
part of the communication (Exhibit96) and rightly so in our
opinion.
| 33. | | Even if it is assumed for the sake of arguments that A1 was |
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present in the jeep owned by Bharatbhai (deceased), this fact in
isolation cannot lead to an inference about culpability of the said
accused for the offences of murder and dacoity. As per the admitted
case of the prosecution, more than one person was present in the
jeep, when the same was flagged down by PSI J.N. Chaudhary (PW
| 22). | | Thus, the possibility of the A1 (Laxmansing) travelling in the |
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jeep as an innocent passenger cannot be ruled out. No other
circumstance except for presence in the jeep was portrayed in the
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prosecution case so as to bring home the guilt of A1.
| 34. | | The prosecution pinned the identity of A2, A3, and A5 as the |
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assailants on the basis of the disclosure statement (Exhibit96) of
A1. They were primarily convicted on the basis of the recoveries of
knives and clothes. On going through the entire record, we find that
these so called incriminating articles allegedly recovered at the
instance of the accused were never sent to the Serology expert for
comparison of the blood groups existing thereupon with the blood
group of the deceased.
35. We have gone through the evidence of the concerned police
officials associated with the recoveries and find their testimonies to
be highly doubtful. The knife which was recovered at the instance of
| A3 was found from a | nala | which is a place open and accessible to |
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all. The knife attributed to A4 was presented by one Shobhnaben
wife of Kanji Chhara and thus it cannot be linked to A4. Thus,
these recoveries in no manner can be treated to be incriminating in
| nature. In the case of | Mustkeem alias Sirajudeen v. State of |
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| Rajasthan, | reported in | (2011) 11 SCC 724 | , this Court held that |
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the solitary circumstance of recovery of bloodstained weapons
cannot constitute such evidence which can be considered sufficient
to convict an accused for the charge of murder. We thus find the
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recoveries to be highly doubtful and tainted. Even if it is assumed
for a moment that such recoveries were effected, the same did not
lead to any conclusive circumstance in form of Serological report
establishing the presence of the same blood group as that of the
deceased and hence they do not further the cause of prosecution. In
addition thereto, we find that the prosecution failed to lead the link
evidence mandatorily required to establish the factum of safe
keeping of the muddamal articles and hence, the recoveries became
irrelevant.
36. At the cost of repetition, it may be noted that the veracity of
disclosure statement of A1 as recorded by PW22 has already been
doubted by us. In addition thereto, it is manifest that the disclosure
statement of A1 cannot be read in evidence against the other
accused i.e. A2, A3 and A5. The evidentiary value of the confession
of one coaccused against the other was considered by this Court in
the case of Haricharan Kurmi v. State of Bihar reported in AIR
1964 SC 1184 and it was held that such statement is not a
substantive piece of evidence. The said case dealt with a judicial
confession made by an accused and it was held that even such
confession cannot be treated as a substantive evidence against
other coaccused persons. In the case at hand, the situation is even
19
worse because the High Court has relied upon the interrogation
note of A1 (Exhibit96) so as to hold A2, A3 and A5 guilty of the
offence. The interrogation note of A1 being hit by Section 25 of the
Evidence Act cannot be read in evidence for any purpose
whatsoever.
| 37. | | From a thorough appreciation of the evidence available on |
|---|
record, we find that the prosecution miserably failed to lead reliable,
tangible and convincing links forming a complete chain of
incriminating circumstances so as to bring home the guilt of the
accused for the charge of murder punishable under Section 302
IPC.
| 38. | | We may note from the quoted portions of the impugned |
|---|
judgment that while reversing the acquittal of the accused recorded
by the trial Court for the charges under Sections 302 read with
Section 34 and Sections 396 and 397 IPC, the High Court did not
record any such finding that the view taken by the trial Court,
based on appreciation of evidence was either perverse or it was not
one of the permissible views favouring the acquittal of the accused.
In this background, the impugned judgment rendered by the High
Court falls short of the satisfaction mandatorily required to be
recorded for reversing a judgment of acquittal and converting it to
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one of conviction.
| 39. | | We are rather compelled to hold that the judgment of the High |
|---|
Court is based sheerly on conjectures and surmises rather than
being based on any substantive or reliable circumstantial evidence
pointing exclusively to the guilt of the accused. Insofar as the
conviction of the accused as recorded by the trial Court for the
offence under Section 392 is concerned, the same is also based on
the same set of inadmissible and unreliable links of circumstantial
evidence which we have discarded in the preceding discussion.
Conclusion:
| 40. | | As a consequence of the above discussion, the impugned |
|---|
| judgment dated 11 | th | December, 2015 passed by the High Court of |
|---|
Gujarat at Ahmedabad in Criminal Appeal No. 1012 of 1993 and
Criminal Appeal No. 949 of 1994 does not stand to scrutiny and is
st
hereby quashed and set aside. Further, the judgment dated 21
August, 1993 passed by the trial Court convicting and sentencing
the accused for the offences punishable under Section 392 IPC is
also unsustainable on the face of the record. Both the judgments
are thus, quashed and set aside.
| 41. | | Resultantly, the appeals are allowed. | The appellants are |
|---|
acquitted of the charges and are directed to be set at liberty
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forthwith, if not required in any other case.
| 42. | | Pending application(s), if any, stand disposed of. |
|---|
….........................J.
(B.R. GAVAI)
............................J.
(SANDEEP MEHTA)
New Delhi;
February 22, 2024
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